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Factual Innocence Motion in California – Penal Code 851.8

Posted by Sam Israels | Mar 02, 2020

There are California criminal cases where the person arrested didn't commit the crime.  In legal terms, this means they are factually innocent of illegal conduct and were falsely accused of committing a criminal offense.

There have been cases when someone was falsely accused because of overly aggressive police tactics in an attempt to reduce crime in a specific neighborhood. Other times, they were just in the wrong location at the wrong time. After they were arrested, a record of the arrest is created and becomes available to other law enforcement agencies can access their criminal record.

There have also been cases where innocent people were arrested, but never formally charged with a crime due to the facts a prosecutor lacks sufficient evidence for a conviction and rejects the case, commonly known as a “DA Reject.”

There are cases where a prosecutor files formal charges, but later decides to drop the case before trail. There are also cases where a prosecutor proceeds to a trial, but the defendant was acquitted by a jury. In all these situations, an arrest creates a formal record that is publicly available that appears on a background check.

This means a defendant who is factually innocent of committing any crime still has an arrest record. Clearly, a record of arrest will often have negative consequences for anyone seeking employment.

Thus, how is it possible to remove an arrest record for a crime that was never committed? If it can be proven you innocent, then you can file a “factual innocence motion” described under California Penal Code 851.8 PC. If successful, the arrest record will be sealed and destroyed.

It should be noted PC 851.8 is different than an expungement. If the motion is granted, then there will not be an indication of the arrest or prosecution for the underlying offense on your criminal record.

To give readers a better understanding of a factual innocence motion, our defense lawyers are providing an overview below.

When Can I File a PC 851.8 Factual Innocence Motion?

The phrase “factual innocence” means you are innocent of a criminal act. A PC 851.8 factual innocence motion is used for someone who was wrongfully accused and has to filed within 2 years of the arrest.

There are several situations when you can make an argument for factual innocence, such as you were:

  • Detained by police, but not arrested
  • Arrested, but never charged with a crime
  • Formally charged with a crime, but later dismissed
  • Charged with a crime, taken to trail, but not convicted

Under California Penal Code 851.8, your factual innocence motion could be granted that would result in the criminal record being sealed and destroyed. The record of the arrest and criminal prosecution will be sealed and destroyed by the law enforcement agency who had jurisdiction over the case, the prosecutor's office who handled the case, and the United States department of Justice.

Additionally, the arresting police department and Department of Justice will be ordered to seal all arrest reports, booking photographs, and other evidence against you for three years. Afterwards, they are legally required to destroy the record about the arrest. This means any record of your arrest and prosecution won't appear on any agency's record in California.

The Petition for Factual Innocence Motion

In order to request a factual innocence motion under California Penal Code Section 851.8, you have to first petition the law enforcement agency who made the arrest to destroy their record of the arrest. As stated, the request has to be made within two years from the date of arrest.

If the law enforcement agency doesn't respond within 60 days after receiving petition, or if they deny the petition, you can make a petition to the court who has jurisdiction over the case to grant an order requiring them to seal and destroy the arrest record.

Under California Penal Code 849.5, and Penal Code 851.6 PC, if arrested and released without being charged with a crime, the arrest has to be deemed “detention only,” and not an arrest. This means the criminal record would only show you were detained.

The Factual Innocence Hearing

The criminal court will schedule a hearing to decide whether you are factually innocent. During the hearing, your attorney will present an argument of factual innocence by showing the court police reports, affidavits, or other relevant evidence.

The common types of evidence used to prove factual innocence includes phone records, photographs, DNA evidence, and witness testimony that establishes an alibi. It should be noted you have the initial burden of proof showing no reasonable cause existed to believe that you committed the crime that you were arrested for.

If your criminal attorney proves there was no reasonable cause, then the burden of proof falls on the shoulders of the prosecutor and arresting police officer, who will have to prove there was reasonable cause showing you committed the crime.

After all the evidence was presented to the court, the judge will either grant or deny your petition for factual innocence.

What If the PC 851.8 Factual Innocence Motion is Granted?

If the judge agrees there was no reasonable cause for the arrest or prosecution, your petition for factual innocence will be granted. Next, the judge will issue an order legally requiring (first 3 years), that the police, prosecutor, and DOJ seal record of arrest, evidence, booking information, and court records.

Potential employers won't be able to see any records showing you were arrested or prosecuted.  While these agencies will still have a copy of the arrest for three years, it will be sealed and can't be disclosed.

After three years, the records will be destroyed and all agencies will no longer have any record of the arrest.

Cron, Israels & Stark for Help

Having a criminal record can impact many aspects of your life. For example, employment opportunities, housing, bank loan, or enrollment in college. If there is a record of arrest or prosecution, applications could be denied.

Also, in an arrest or prosecution for domestic violence, it will impact the ability to own or purchase firearms. In some professions, an arrest could lead to a loss of a professional license.

We understand being arrested for a crime you didn't commit can have devastating consequences on your life. Our criminal defense attorneys can assist you in avoiding the harmful impact of a false arrest or prosecution. We can guide you through the process of filing a factual innocence motion under California Penal Code 851.8

Cron, Israels & Stark is a criminal defense law firm located at 11755 Wilshire Blvd, 15th Floor, Los Angeles, CA 90025. We also have an office located at 401 Wilshire Blvd #1200, Santa Monica, CA 90401. 

About the Author

Sam Israels

Sam J. Israels is a Law Firm partner with the Law Offices of Cron, Israels, & Stark. Mr. Israels received his J.D. degree from the Santa Clara University School of Law. Mr. Israels also previously worked at the Los Angeles Office of the City Attorney. He is admitted to practice law in the State o...

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